Case Number: BC691372 Hearing Date: June 26, 2019 Dept: 4A
Motion to Compel Deposition and Production of Documents
Having considered the moving, opposing, and reply papers, the Court rules as follows.
BACKGROUND
On January 23, 2018, Plaintiffs Candice Coykendall and Brandon Robinson (“Plaintiffs”) filed a complaint against Defendant Ulivaldo Chavez (“Defendant”) alleging motor vehicle and general negligence for a vehicle collision that occurred on December 5, 2016.
On April 12, 2019, Plaintiffs filed a motion to compel Defendant’s appearance at a deposition and Defendant’s responses to request for production of documents.
Trial is set for October 18, 2019.
PARTIES’ REQUESTS
Plaintiffs ask the Court for an order compelling Defendant to appear and testify at a deposition and produce documents specified in Plaintiffs’ deposition notice within ten days of the hearing on this motion.
Plaintiffs also request that the Court award $3,736.65 in monetary sanctions against Defendant and/or Defendant’s counsel of record for their abuse of the discovery process.
Defendant requests the Court for $525.25 in monetary sanctions against Plaintiffs and their counsel of record for bringing a frivolous motion.
LEGAL STANDARD
California Code of Civil Procedure section 2025.450, subdivision (a) provides:¿ “If, after service of a deposition notice, a party to the action¿. . .¿, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document¿. . .¿described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document¿. . . described in the deposition notice.”¿¿
California Code of Civil Procedure section 2025.450, subdivision (b) states, “A motion under subdivision (a) shall comply with both of the following:
The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. . .
The motion shall be accompanied by a meet and confer declaration under Section 2016.040,¿or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”
A court may grant sanctions against a party who brings a motion unsuccessfully without substantial justification as such a motion is an abuse of the discovery process. (Code Civ. Proc. §§ 2023.010, subd. (h), 2023.030, subd. (a).)
DISCUSSION
The Court initially notes that Plaintiffs have not filed a satisfactory meet and confer declaration with their motion. Plaintiffs filed such a meet and confer declaration with their reply papers. Despite Plaintiffs’ failure to abide by the mandates of California’s Code of Civil Procedure, the Court addresses the motion on the merits.
On January 24, 2019, Plaintiffs served on Defendant a notice of taking Defendant’s deposition and request for production of documents and set the deposition for February 26, 2019. (Berkley Decl., ¶ 5, Exh. 1.) On February 22, 2019, Defendant sent an objection to the February 26, 2019 deposition due to the deposition notice being improperly served on Defendant at his former residence. (Berkley Decl., ¶ 8, Exh. 4.)
After receiving available dates from Defendant, Plaintiffs serve a second deposition notice setting Defendant’s deposition for a date when he and his counsel were not available. (Berkley Decl., Exh. 6-7, 9). Again, Defendant objects so Plaintiffs’ served a third deposition notice, this time scheduling the deposition on one of the dates provided by defense counsel as an available day. (Berkley Decl., Exh. 8).
On March 12, 2019, Plaintiffs served on Defendant an amended deposition notice and request for production of documents and set the deposition for April 5, 2019 after Defendant indicated that April 5, 2019 was a satisfactory date. (Berkley Decl., ¶¶ 9-10, 12; Exh. 5-6, 8.) On April 2, 2019, defense counsel sent an email stating that Defendant would “need to reschedule” the April 5, 2019 deposition because his counsel would be in trial. (Berkley Decl., ¶ 14, Exh. 10.) On April 4, 2019, Defendant repeated the April 2, 2019 correspondence through facsimile and U.S. Mail. (Berkley Decl., ¶ 15.). Defendant did not provide alternate dates, but neither did Plaintiffs ask for new dates or even just set a new deposition date as their deposition notice announced they would do in the event of a scheduling conflict. (Berkley Decl., Exh. 8 at p. 2 [“If our office docs not receive alternative dates within five days of canceling this deposition, we will select a date convenient for Plaintiffs’ counsel.“). Instead, Plaintiffs simply filed a motion to compel the deposition on April 12, 2019.
Plaintiffs argued in their moving papers that good cause exists to grant Plaintiffs’ motion to compel because Defendant has yet to appear at a deposition or provide alternative dates for the deposition, despite Plaintiffs satisfactory deposition notices. (Motion, p. 7:19-7:22.) It appears from the reply brief, however, that Defendant’s deposition was taken on June 12, 2019. Thus, the motion to compel is moot and all that remains are the parties’ competing requests for sanctions.
The Court denies Plaintiffs’ request for sanctions finding that Defendant’s positions in opposition to Plaintiffs’ efforts to take his deposition were not without substantial justification.
The Court finds Defendant was not required to comply with the January 24, 2019 deposition notice because Defendant raised a timely objection to it, based on the fact that, in attempting to serve Defendant directly before he appeared in the action, Plaintiffs sent the deposition notice to Defendant’s former residence, rather than his current one. (Opposition, pp. 2:25-3:3.) Plaintiffs argue that the objection is without merit because the January 24, 2019 deposition notice was served on the same location where Defendant was served with the summons and complaint. (Reply, p. 4:2-4:8.) Plaintiffs also attack the objection as invalid because Defendant did not challenge service of process of the summons and complaint, effectively validating service of documents at that address. (Ibid.) The Court does not agree. Defendant’s decision not to challenge service at the wrong address does not mean that subsequent service at that same wrong address is valid. Defendant’s choice to answer the complaint as opposed to quash the service of summons may have been a tactical litigation strategy. As such, Plaintiffs’ January 24, 2019 deposition notice could not be the basis for granting the relief Plaintiffs seek.
Similarly, for the March 7, 2019 deposition notice, Plaintiffs selected a date other than the specific dates given by Defendant as days when he could sit for his deposition and apparently did so without consulting with defense counsel about why a different date needed to be selected. The Court finds that Defendant’s resistance to this deposition schedule was clearly justified.
Turning to the March 12, 2019 notice, the Court finds that, although defense counsel indicated an inability to appear for deposition on a date that was previously cleared as open, Defendant did not refuse to appear but only notified Plaintiffs that the date would have to be rescheduled because of defense counsel’s trial schedule. While the Court may question why defense counsel offered a date when she would be in trial, this situation could have been remedied if Plaintiff’s counsel had met and conferred to secure a new date rather than just filing a motion to compel. Indeed, a new date was scheduled soon thereafter allowing Defendant’s deposition to be taken and rendering the motion to compel moot.
Accordingly, the Court cannot find that Defendant has abused the discovery process or taken positions that are without substantial justification in delaying Plaintiffs’ deposition. Defendant has not failed to appear for examination, or to proceed with it, or to produce for inspection any document¿identified in a valid deposition notice. There is no basis to compel Defendant’s deposition or to order further compliance with Plaintiffs’ deposition notice.
To the contrary, the Court finds that Plaintiffs’ motion was brought without substantial justification and before any informal effort to resolve the dispute by rescheduling the deposition. Thus, the Court finds that it is Defendant who is entitled to sanctions . against Plaintiffs pursuant to California Code of Civil Procedure sections 2023.030, subdivision (a), and 2023.010, subdivision (h).
Defendant requests $525.25 in monetary sanctions for spending two hours reviewing Plaintiffs’ motion, researching, and drafting an opposition, and one hour appearing at the hearing all at a rate of $143.75 an hour, plus one $94.00 court call fee. The Court finds this to be a reasonable amount of sanctions to be imposed against Plaintiffs and Plaintiffs’ counsel of record, jointly and severally.
Therefore, Plaintiffs’ motion is DENIED.
Plaintiffs’ request for monetary sanctions is DENIED.
Defendant’s request for monetary sanctions is GRANTED.
The Court orders Plaintiffs and Plaintiffs counsel of record to pay Defendant $525.25 in monetary sanctions, jointly and severally, within 20 days of this order.
Defendant is ordered to give notice of this ruling.